Opinion
Civil Action 2: 21-cv-1373
12-20-2021
DWAYNE L. RIECO, Plaintiff, v. MICHAE ZAKEN, Superintendent, et al., Defendants.
Arthur J. Schwab, Senior United States District Judge.
REPORT & RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge
I. Recommendation
For the following reasons, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed In Forma Pauperis (ECF No. 3) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff reopening it by paying the full statutory and administrative filing fees, totaling $402.00.
II. Report
A. Factual and Procedural Background
As this Court has noted on many occasions, Plaintiff, Dwayne L. Rieco (“Rieco”), is a prodigious federal court litigant, who has had at least three prior lawsuits dismissed either as frivolous or on the grounds that the lawsuit failed to state a claim upon which relief could be granted. A recurring theme in his many lawsuits is a continuing cycle of conflict between him and the corrections officers. It is common for Rieco to allege that the corrections officers make verbal threats to him, attempt to execute him by exposing him to dangerous dust particles, and hazardous agents, such as radon and methane gases, expose him to radiation or “acid in the air” which cause severe scorching on his legs, contaminate his food and water, and deny him pens, stationery, and grievance forms in an attempt to deny him access to courts.
The instant case contains similar, if not identical, allegations, to those Rieco has asserted in the past. For example, he again asserts that “he is placed in jeopardy of his life and limb with hazardous agents in an attempt to execute him.” He claims that the corrections officers have used “radon gases and methane to cause him serious physical injuries to his arms, legs and stomach. They turn on an agent that is airborne and causes his epidermis to itch and this toxin is in his food and water. . . . His legs are raw tissue and are bleeding daily from this toxicant poison used to excessively punish him.” “Electrocutions to his right and left legs has caused him 1st, 2nd, and 3rd degree burns.” (lodged Complaint, ECF No. 1).
On October 14, 2021, the Clerk of Court received Rieco's civil rights complaint, but it was not accompanied by either the filing fee or a motion for leave to proceed in forma pauperis (“IFP Motion”.) A week later, the Rieco submitted an IFP motion, but it was not accompanied by the required affidavit by a Records Officer of Prison or a certified copy of his inmate account statement. (ECF No. 3). Because of these deficiencies, the case was administratively closed on October 26, 2021, and Rieco was advised that the case would remain closed until such time as the IFP motion was complete or Rieco paid the full filing fee. (ECF No. 6). On November 16, 2021, Rieco submitted a Notice claiming that Defendants were refusing to provide him with the requisite financial documents. (ECF No. 7). The undersigned then ordered Rieco to provide an affidavit supporting his assertions detailing the circumstances of his requests and the officials' interference with his requests, including the dates of such events and the names of the individuals involved. (ECF No. 8). In response, Rieco has submitted a Declaration and Affidavit. (ECF No. 9 and 10).
The United States Court of Appeals for the Third Circuit clarified that courts may use a flexible approach in assessing IFP applications under the PLRA and “has the authority to dismiss a case ‘at any time,' 28 U.S.C. 1915(e)(2), regardless of the status fee; that is, a court has the discretion to consider the merits of a case and evaluate an IFP application in either order or even simultaneously.” Brown v. Sage, 941 F.3d 656, 660 (3d Cir. 2019).
The undersigned will review the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.
B. Relevant Law
Pursuant to 28 U.S.C. § 1915(g), a prisoner who has filed three civil actions that were dismissed on the basis that they were frivolous, malicious, or failed to state a claim upon which relief may be granted may not proceed in forma pauperis “unless the prisoner is in imminent danger of serious physical injury” at the time the complaint was filed. Ball v. Famiglio, 726 F.3d 448, 467 (3d Cir. 2013), abrogated in part by Coleman v. Tollefson, -- U.S. --, 135 U.S. 1759, 1763 (2015). Prisoners with three strikes who cannot satisfy the imminent danger exception are not barred from filing additional federal actions, rather they are denied the privilege of proceeding in forma pauperis and must pay the requisite filing fee in full prior to commencing a new action. Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir.) (en banc), cert denied, 533 U.S. 953 (2001).
When deciding whether a prisoner meets the “imminent danger” requirement, a court must examine the situation faced by the prisoner at the time of the filing of the complaint, and a showing of danger in the past is insufficient to demonstrate “imminent danger.” Id. at 312.
Allegations of imminent danger must be evaluated in accordance with the liberal pleading standard applicable to pro se litigants, although the Court need not credit “fantastic or delusional” allegations that “rise to the level of irrational or wholly incredible.” Gibbs v. Cross, 160 F.3d 962, 966-67 (3d Cir. 1998) (quotations omitted).
To satisfy the imminent danger exception, Rieco must allege facts showing that he was in imminent danger at the time the complaint was filed. Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (overruling Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)). The Court of Appeals for the Third Circuit has instructed that:
“[i]mminent” dangers are those dangers which are about to occur at any moment or are impending. By using the term “imminent, ” Congress indicated that it wanted to include a safety valve for the “three strikes” rule to prevent impending harms, not those harms that had already occurred. The imminent danger exception allows the district court to permit an otherwise barred prisoner to file a complaint I.F.P. if the prisoner could be subject to serious physical injury and does not then have the requisite filing fee.Id. at 315 (internal citation omitted). Imminent danger requires a showing of serious physical injury at the time the complaint is filed. Id. at 312. The imminent danger exception is available only for genuine emergencies where time is pressing and a threat is real and proximate. Long v. Lanigan, et al., CA No. 10-0798, 2010 WL 703181, *2 (D.N.J., Feb. 23, 2010).
A court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit “factual claims of imminent danger that are clearly baseless, i.e., allegations that are fantastic or delusional and rise to the level of the irrational or wholly incredible . . . we are not required to accept without question the truth of the plaintiff's allegations.” Brown v. City of Philadelphia, 331 Fed.Appx. 898, 900 (3d Cir.), cert. denied, 558 U.S. 999 (2009) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). “[C]ourts have the discretion to deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous . . . .” Ball v. Famiglio, 726 F.3d 448, 467-68 (3d Cir. 2013), abrogated on other grounds by Parker v. Montgomery County Correctional Facility, 870 F.3d 114 (3d Cir. 2017) (applying Coleman v. Tollefson, __ U.S.__, 135 S.Ct. 1759 (2015), for purposes of the three strike rule, strike takes effect at time of dismissal even if dismissal is the subject of an appeal).
C. Discussion
Applying the above legal principles, the Court finds that Rieco's allegations are insufficient to satisfy the imminent danger requirement of 28 U.S.C. § 1915(g). Rieco's allegations that the correction officers are trying to murder him, exposing him to radon and methane gases, exposing him to electrocutions and “acids in the air” causing his skin to scorch, and contaminating his food and water are fanciful, fantastic, and/or delusional.
III. Conclusion
Based on the discussion above, it is respectfully recommended that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 3) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff reopening it by paying the full statutory and administrative filing fees, totaling $400.00.
Plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file objections to this Report and Recommendation by January 6, 2021. Plaintiff is cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).